Employee emails searched in Hatch Act probe

Jul. 10, 2013 - 06:00AM
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Then-presidential candidate Barack Obama hits the campaign trail in 2008. In that year, thousands of employees at the Education Department had their email accounts scoured for correspondence where the subject lines contained the words Obama or McCain, indicating potential violations of the Hatch Act. (AFP via Getty Images)

Republican presidential candidate John McCain greets supporters at a campaign rally on Oct 25, 2008, at the New Mexico State Fair Grounds in Albuquerque, N.M. / AFP via Getty Images

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Thousands of employees in the Education Department had their email accounts scoured for correspondence in 2008 where the subject lines of messages contained the words Obama or McCain.

The previously undisclosed probe by the Education Department’s Office of Inspector General sought to identify employees running afoul of the Hatch Act, which bars partisan political activity while on official duty.

The investigation, which closed last year and was disclosed after a Freedom of Information Act request by Federal Times, found that 870 employees had sent an email with the name of a 2008 presidential candidate in the subject line.

In its more recent budget request, the department reported employing 4,266 full-time employees.

The IG’s technology crimes division narrowed that list to 21 employees by limiting its investigation to those who met one of several thresholds: employees who sent 35 or more such emails, employees who sent five or more messages involving rallies, employees in supervisory roles who sent five or more such messages, or employees who sent one or more emails involving campaign fundraising.

The IG’s office sent the 21 cases to the Office of Special Counsel (OSC), which enforces the Hatch Act.

Three employees resigned. Of the remaining 18 employees, OSC found six clearly violated the act, but none were disciplined. Instead, the six received written warnings.

The documents obtained by Federal Times do not identify the names of the political candidates, revealing only that the review sought the emails with the names of a national candidate for political office in 2008. Democrat Barack Obama and Republican John McCain were the presidential candidates that year.

Hatch Act expert Scott Coffina, who served as associate White House counsel under President George W. Bush, said the IG’s investigation seemed unusual in the sense that most Hatch Act cases are brought as a result of complaints, not sweeping investigations.

“At the same time, this is not an insignificant law, and maybe they wanted to be sure the workplace was not being infiltrated with politics,” he said.

Before amendments to the law last year, the penalty for violations was termination, though it could be mitigated to a 30-day suspension by a unanimous vote by the Merit Systems Protection Board, according to OSC.

But OSC spokesman Adam Miles said the statutory penalty provisions apply only in cases OSC formally brings to the board.

“In all other cases, OSC has prosecutorial discretion to enter into a settlement with the employee and agency for a different penalty,” he wrote in an email, adding that a warning letter rather than formal disciplinary action is a possible outcome.

While declining to discuss specific cases, Miles said OSC generally seeks discipline in cases where there is coercion, solicitation of other federal employees and repeat activity.

“But in cases that don’t meet these general thresholds, OSC issues warning letters,” he said.

Asked what prompted the broad investigation, Catherine Grant, a spokeswoman for the IG, said the office doesn’t comment on its investigative techniques.

She said numerous factors influence the IG’s investigative activities, including “complaints from a variety of sources, including our hotline, observed circumstances in other investigations and current events.”

Following the investigation, she said the department’s annual ethics training now emphasizes the Hatch Act to prevent future violations.